Wednesday, March 17, 2010

Snyder v. Phelps

Dan Solove at Concurring Opinions has some inciteful commentary on the tort claims underlying this case, which as noted earlier involves a protest by members of the Westboro Baptist Church near a cemetery where a military funeral was taking place. I agree with Dan that the basis for the tort claims seems very weak. Like others, I am also puzzled as to why the Court took this case. It is not customary to take a case like this one simply to affirm the lower court. Clarifying whether the "actual malice" standard applies in a case involving a private figure might be worthwhile. But as Dan and others (including the Fourth Circuit panel) have noted, the speech in question seems rather clearly to relate to matters of public concern.

Should the court reverse the Fourth Circuit and allow the tort judgment to stand, public protesters might be deterred from conveying offensive messages in other contexts. Abortion clinic protesters, speakers demonstrating near churches, and others might well find themselves subject to civil liability under ordinary tort liability rules. The First Amendment generally requires public audiences to tolerate even reprehensible messages, so long as speakers do not cross the line into threats, or incitement, or other illegal content. Some protected content will be "extreme and outrageous," the standard under the intentional infliction of emotional distress tort (I'll leave aside the "intrusion" claim). But as the Court noted in Hustler v. Falwell, that standard is too subjective and gives juries too much power to determine the propriety of speech.

States, localities, and the federal government have all sought to displace the Westboro protesters through time, place and manner regulations. Some of those measures have been invalidated. Some, in my view, were blatantly content-discriminatory. All were obviously enacted to deal with the only group, to my knowledge, that has ever protested near cemeteries. No one, other than the speakers themselves, would defend the substance of the message here. But to impose civil damages for speech conveyed in a public place where the speakers had a right to be would create a very dangerous precedent for public speech and contention.

And for those wishing to silence the Phelps's on the ground that their speech is hateful or offends the Snyders' dignity, I would ask whether they are generally prepared to adopt the more European constitutional tradition of placing personal dignity above speaker autonomy.